A solitary confinement cell, from the Office of the Correctional Investigator. A B.C. Supreme Court judge has struck down a law that permits federal prisons to put inmates into solitary confinement indefinitely.Office of the Correctional Investigator / THE CANADIAN PRESS

Canada’s use of prolonged solitary confinement in federal prisons is the equivalent of torture, doesn’t work and has been struck down as unconstitutional by the B.C. Supreme Court.

In a landmark decision Wednesday, Justice Peter Leask said the legislation allowing such confinement fails to provide an independent review of segregation placements and deprives inmates of the right to counsel at segregation review hearings.

He concluded the regime violated prisoners’ Charter of Rights and Freedoms’ Section 7 right to life because it placed them at increased risk of self-harm and suicide.

It also breached their right to security of the person, Leask found.

“I find as a fact that administrative segregation as enacted by s. 31 of the CCRA is a form of solitary confinement that places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide,” Leask wrote in his 54,000-word judgment.

Thousands of prisoners have been subjected to solitary segregation over the years — isolated for up to 23 hours a day sometimes for months, sometimes years.

There are about 14,000 inmates in federal institutions — 679 women — and one in four of the incarcerated men during a fiscal year spend some time in segregation and more than 40 per cent of women.

For the past two years, the average stay in administrative segregation has declined from an average of 30 days in September 2015 to 22 days in March 2017.

B.C. Supreme Court Justice Peter Leask.Les Bazso /
PNG Files

Leask held that the law also discriminated against the mentally ill, the disabled and First Nations.

“I have no hesitation in concluding that rather than prepare inmates for their return to the general population, prolonged placements in segregation have the opposite effect of making them more dangerous both within the institutions’ walls and in the community outside,” he said.

He invalidated the legislation to the extent that it authorized any period of administrative segregation for the mentally ill or disabled and to the degree that the regime discriminates against Indigenous inmates.

“Just so delighted to announce I have in my hands the most significant trial court decision\on prison law in Canadian history,” said an emotional Jay Aubrey, staff lawyer of the B.C. Civil Liberties Association (BCCLA).

“Friends, we won. We won so much. Such a powerful decision. A stunning decision … Everyone needs to hear these words … (solitary causes) significant risk of serious psychological suffering …

“It is a stunning decision that is grounded in four decades of history, and the best social science and medical evidence on the impact on inmates’ health of solitary confinement, and alternatives to solitary confinement.”

During a nine-week trial last year in this case launched by the BCCLA and John Howard Society of Canada (JHSC), Leask heard from experts who said solitary confinement can create mental illness where none previously existed and exacerbate pre-existing illness.

The BCCLA and JHSC argued there are better, more humane alternatives to indefinite solitary confinement that promote rehabilitation and decrease prison violence.

Ashley Smith died in 2007 in her segregation cell, after spending more than a year of continuous solitary confinement. (Canadian Press, PNG files)Canadian Press handout /
PNG Files

“The problems with solitary confinement have been obvious for decades, with recommendations for reform coming from all quarters of society, including the Correctional Investigator of Canada and the United Nations Committee Against Torture. After years of government inaction, today’s court decision is a huge, and long overdue, win for prisoners.”

Leask said there should be time limits of 15 days in solitary — longer periods are considered torture by the UN — and the government indicated it could implement that standard.

“In this regard, I am firmly of the view that a time limit on the use of administrative segregation would create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns,” the justice explained.

He suspended the effect of his ruling for a year to give Ottawa time to pass new legislation to reflect the decision without causing an undue safety risk in prisons.

Both organizations celebrated inmates and their families who testified against the system in which they were still enmeshed as well as the families of those who had died in confinement, such as Ashley Smith.

In the fall of 2007, Smith died in her segregation cell after spending more than a year of continuous solitary.

“For every person who spent time in solitary confinement and for all the prisoners watching today, I just have a message I can’t leave off,” Aubrey said.

“They may try to hide you. They may try to hide your pain from the rest of the Canadian population. But we actually see you. The court sees you and we refuse to look away from your pain. Your suffering matters, you matter, you are important. What has been done to you is very, very wrong. Today’s victory belongs to you. It’s yours.”

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